Introduction & Overview
The Indian Constitution, in its endeavor to balance rigidity with flexibility, provides for different procedures for amending its various provisions. These procedures reflect the varying degrees of importance attached to different parts of the Constitution. While Article 368 primarily details the power and procedure for formal constitutional amendments requiring a special majority (and sometimes state ratification), certain provisions can be amended by a simple majority of Parliament through the ordinary legislative process, and these are explicitly kept outside the scope of Article 368. This tiered approach allows for easier changes to less fundamental aspects while safeguarding core constitutional principles and federal features through more stringent requirements.
(Source: Broad understanding synthesized from Laxmikanth, 'Indian Polity'; D.D. Basu, 'Introduction to the Constitution of India'; Constitution of India (Bare Act - Articles 4, 169, 368))
9.3.1: Amendment by Simple Majority of Parliament (Outside the scope of Article 368)
Key Characteristics
A significant number of provisions in the Constitution can be amended by a simple majority of the two Houses of Parliament, in the same manner as an ordinary law is passed. These amendments are explicitly excluded from the purview of Article 368 by provisions like Article 4(2) and Article 169(3).
- Simple Majority: This means a majority of the members of each House present and voting (similar to how ordinary bills are passed). It does not require the more stringent conditions of Article 368's special majority.
- Exclusion from Article 368: This implies that these changes, even if they amend the text of the Constitution (e.g., by altering the First or Fourth Schedule when a new state is formed), are not considered "amendments of this Constitution for the purposes of Article 368."
Examples of provisions amended by Simple Majority:
New States & Boundaries
Admission/establishment of new states (Art 2) & formation/alteration of areas, boundaries or names of existing states (Art 3). (As per Article 4(2))
Legislative Councils
Abolition or creation of legislative councils in states (Article 169). (Article 169(3) states such a law shall not be deemed an amendment for Art 368 purposes).
Emoluments & Privileges
Second Schedule – emoluments, allowances, privileges and so on of President, Governors, Speakers, judges, etc.
Parliamentary Procedures
Quorum (Art 100), Salaries/Allowances of MPs (Art 106), Rules of Procedure (Art 118), Privileges (Art 105), Use of English (Art 120).
Supreme Court Scope
Number of puisne judges (Art 124), Conferment of more jurisdiction (Art 138).
Official Language
Use of official language (Article 343 - Parliament can by law provide for use of English beyond 15 years).
Citizenship
Acquisition and termination (Article 11). (Laws made under Art 11 are by ordinary process).
Elections
Elections to Parliament and state legislatures (including delimitation of constituencies).
Union Territories
Administration, creation of legislatures, etc.
Fifth & Sixth Schedules
Administration & control of scheduled areas/tribes (Fifth Schedule) and tribal areas (Sixth Schedule).
This category provides the necessary flexibility to the Constitution to deal with evolving administrative and territorial arrangements without resorting to the more difficult amendment procedures.
9.3.2: Amendment by Special Majority of Parliament (As per Article 368)
Key Characteristics
This is the primary method for amending most provisions of the Constitution and is laid down in Article 368(2). It applies to provisions considered more fundamental than those amendable by simple majority but do not directly affect the core federal structure.
- Special Majority (as defined in Article 368(2)):
- A majority of the total membership of that House (i.e., an absolute majority – more than 50% of the total strength of the House).
- AND
- A majority of not less than two-thirds of the members of that House present and voting.
- Both conditions must be satisfied in each House separately.
- No provision for joint sitting in case of disagreement.
Examples of provisions amended by Special Majority:
Fundamental Rights (Part III)
These core rights of citizens require significant consensus to be altered, ensuring their protection.
Directive Principles of State Policy (Part IV)
The guiding principles for the state, though non-justiciable, are fundamental to governance and require broad agreement for amendment.
All Other Provisions
This forms the bulk of the Constitution, covering all provisions not falling under the simple majority category or the special majority plus state ratification category.
This method ensures that changes to important parts of the Constitution, like Fundamental Rights and DPSPs, are made with a significant degree of consensus within Parliament, making them relatively more rigid than ordinary laws.
9.3.3: Amendment by Special Majority & State Ratification (As per Article 368)
Key Characteristics
This procedure is the most rigid and is reserved for amending provisions that affect the federal structure of the polity. These are provisions where both the Union and the States have a vested interest, and changes to them require the consent of both levels of government.
- Requires Special Majority in Parliament (same as 9.3.2).
- Ratification by States: After Parliamentary passage, it must be ratified by the Legislatures of not less than one-half of the States.
- State ratification is done by a resolution passed by a simple majority of members present and voting in each House of the State Legislature.
- No Time Limit for Ratification: The Constitution does not prescribe a time limit for states to ratify.
- Presidential Assent: Only after the requisite number of states have ratified, the bill is presented to the President for assent, which is obligatory.
Examples of Provisions Requiring State Ratification:
Election of President
Election of the President and its manner (Articles 54, 55).
Executive Powers
Extent of the executive power of the Union (Article 73) and the States (Article 162).
Judiciary (SC & HC)
Supreme Court and High Courts (Organization, jurisdiction, powers - Articles 124-147, 214-231, 241).
Distribution of Powers
Distribution of legislative powers between the Union and the States (Chapter I of Part XI; and any of the Lists in the Seventh Schedule).
Seventh Schedule Lists
Any of the Lists in the Seventh Schedule (Union List, State List, Concurrent List).
Representation in Parliament
Representation of States in Parliament (Fourth Schedule - allocation of seats in Rajya Sabha).
Article 368 Itself
Article 368 itself (the power of Parliament to amend the Constitution and the procedure therefor).
This procedure safeguards the federal principles of the Constitution and ensures that changes affecting the states' powers and status are made with their concurrence, thus reflecting the spirit of cooperative federalism.
Summary: Types of Constitutional Amendments
| Type of Amendment | Majority in Parliament | State Ratification Needed? | Governed by Art 368? | Examples |
|---|---|---|---|---|
| 1. By Simple Majority | Simple Majority (Present & Voting) | No | No (Explicitly Excluded) | Art 2, 3, 169, Second Schedule, Citizenship, UTs, etc. |
| 2. By Special Majority | Special Majority (Absolute Maj + 2/3rd Present & Voting) in each House. | No | Yes | Fundamental Rights, DPSPs, most other provisions. |
| 3. By Special Majority + Ratification by ≥ 1/2 States | Special Majority (Absolute Maj + 2/3rd Present & Voting) in each House. | Yes (by Simple Majority) | Yes | Election of President, Exec. powers of Union/States, SC/HCs, Leg. Power Distribution (7th Sch.), State Rep. in Parl., Art 368 itself. |
Analytical Insights & Rationale
- Rationale for Differentiated Amendment Procedures:
- The framers recognized that not all parts of the Constitution are equally fundamental or require the same level of rigidity.
- Flexibility for Operational Aspects: Provisions that are more administrative or require frequent adjustments (like state boundaries, citizenship rules, parliamentary procedures) are made amendable by simple majority to ensure smooth governance and adaptability.
- Rigidity for Core Principles: Provisions that form the core of the constitutional scheme (like FRs, DPSPs) require a special majority, indicating a need for broad consensus for their alteration.
- Highest Rigidity for Federal Structure: Provisions affecting the federal balance and the rights of states require state ratification in addition to a special parliamentary majority, safeguarding the federal compact.
- This calibrated approach reflects a deep understanding of constitutional engineering.
- The "Outside Article 368" Category – Significance:
- Explicitly kept outside the purview of Article 368, it prevents the Constitution from becoming overly cumbersome for routine but constitutionally relevant administrative and territorial adjustments.
- Special Majority – Ensuring Broad Consensus:
- The two conditions ensure that amendments are not pushed through by a fleeting majority, necessitating active participation and substantial support, lending greater legitimacy.
- State Ratification – Voice of the States in Federal Amendments:
- Crucial for maintaining federal balance; ensures Union Parliament cannot unilaterally alter Centre-State relations without significant concurrence.
- However, the requirement of only half the states ratifying by simple majority is sometimes seen as less stringent compared to other federations (e.g., 3/4th of states in USA).
- Absence of a time limit for state ratification can lead to procedural uncertainties.
Even if Parliament follows the correct procedure, the amendment can still be struck down by the judiciary if it violates the 'Basic Structure' of the Constitution. Thus, procedural requirements are necessary but not always sufficient for an amendment's validity. The Basic Structure doctrine acts as a substantive limitation on the amending power.
Current Affairs & Recent Developments
106th Constitutional Amendment Act, 2023
(Nari Shakti Vandan Adhiniyam): This Act provides for reservation of one-third of seats for women in Lok Sabha, State Legislative Assemblies, and the Delhi Legislative Assembly.
Procedural Aspect: Being an amendment that affected the representation of states and provisions related to state legislatures (requiring changes in composition), it required passage by special majority in both Houses of Parliament AND ratification by at least half of the State Legislatures. This process was completed, and the Act received Presidential assent. This is a contemporary example of the third type of amendment procedure in action.
(Source: The Constitution (One Hundred and Sixth Amendment) Act, 2023; PIB)
Discussions on "One Nation, One Election"
The proposal for simultaneous elections to Lok Sabha and State Assemblies would likely require significant constitutional amendments.
Procedural Aspect: Such amendments would potentially affect federal provisions related to the terms of legislatures, emergency provisions, and possibly distribution of powers. If pursued, the type of majority and need for state ratification (especially if it affects Articles like 83, 172, 356, or entries in Seventh Schedule) would be a major point of discussion, directly involving Article 368 procedures.
(Source: High-Level Committee on One Nation, One Election - report submitted March 2024)
UPSC Previous Year Questions (PYQs)
Prelims MCQs
- Directive Principles of State Policy
- Formation of new states and alteration of areas of states
- Fundamental Rights
- Abolition or creation of Legislative Councils in States
Select the correct answer using the code given below:
- (a) 1 and 3 only
- (b) 2 and 4 only
- (c) 1, 2 and 3 only
- (d) 2, 3 and 4 only
Answer: (b)
Hint/Explanation: Formation/alteration of states (Art 3, covered by Art 4(2)) and abolition/creation of Legislative Councils (Art 169) can be done by simple majority and are not deemed amendments under Art 368. DPSPs (1) and FRs (3) require special majority under Art 368.
- (a) Fundamental Rights
- (b) Directive Principles of State Policy
- (c) Any of the Lists in the Seventh Schedule
- (d) Rules of Procedure in Parliament
Answer: (c)
Hint/Explanation: Amendments to any of the Lists in the Seventh Schedule (distribution of legislative powers) affect the federal structure and thus require state ratification as per the proviso to Article 368(2). FRs, DPSPs, and Rules of Procedure in Parliament (simple majority) do not require state ratification.
Which of the statements given above is/are correct?
- (a) 3 only
- (b) 1 and 2 only
- (c) 2 and 3 only
- (d) 1, 2 and 3
Answer: (a)
Hint/Explanation: 1. Incorrect (can be by Minister or Private Member). 2. Incorrect (no joint sitting for constitutional amendment bills). 3. Correct (President's assent is obligatory post-24th Amendment).
Mains Questions
Direction/Value Points:
- Introduction: Constitution's blend of rigidity/flexibility reflected in different amendment procedures.
- Types of Majorities/Procedures:
- Simple Majority (Outside Art 368): Explain; give examples (state reorg, citizenship, Leg. Councils).
- Special Majority (Art 368): Explain (Absolute Maj + 2/3rd P&V); give examples (FRs, DPSPs).
- Special Majority + State Ratification (Art 368): Explain; list key federal provisions.
- Rationale for Differentiated Approach:
- Flexibility for Operational Matters.
- Consensus for Core Principles.
- Protection of Federalism.
- To balance stability with adaptability; avoid making all changes too easy or too difficult.
- Reflects varying importance of different constitutional parts.
- Conclusion: The differentiated amendment procedures demonstrate the framers' wisdom in creating a constitution that is both resilient in its core and adaptable in its periphery, suiting India's diverse and evolving needs.
Direction/Value Points:
- Introduction: State the claim – more flexible than rigid, yet federal safeguards exist.
- Aspects of Flexibility:
- Many provisions amendable by simple majority (outside Art 368).
- Many significant parts (FRs, DPSPs) amendable by Parliament alone with special majority.
- Compare with highly rigid constitutions like USA.
- Aspects of Rigidity / Safeguards for Federal Character:
- Special majority itself is a higher threshold.
- Provisions affecting federal structure (Art 368 proviso) require ratification by at least half of the states.
- No provision for joint sitting ensures Rajya Sabha (representing states) has a co-equal role.
- (Mention Basic Structure doctrine as an ultimate judicial safeguard).
- Analysis – Is the Balance Right?
- Argument that "half of states by simple majority" for ratification is still relatively flexible.
- However, it does ensure a degree of federal consensus.
- Conclusion: The Indian amendment procedure indeed leans towards flexibility for many parts, enabling adaptation. However, for its core federal provisions, it incorporates a significant element of rigidity through the state ratification process, thus providing crucial safeguards for its federal character.
Trend Analysis (Past 10 Years)
Prelims Focus
- High focus on distinguishing between the three types of amendment procedures.
- Identifying which provisions fall under which category (especially examples for simple majority and those requiring state ratification).
- The specifics of "special majority" as defined in Article 368.
- Knowledge that changes under Art 2/3 (via Art 4) or Art 169 are not Art 368 amendments.
Mains Focus
- Analytical questions on the rationale for the differentiated amendment procedures.
- The blend of rigidity and flexibility is a core theme.
- The federal safeguards in the amendment process (role of state ratification).
- Comparison of the Indian amendment process with that of other countries.
- Questions often require understanding the why behind the procedures, not just the what.